The LPA replaced the Enduring Power of Attorney (EPA) as the way of appointing decision makers for a time when a person may lack capacity.
Only EPAs made and signed prior to 1st October 2007 can still be used.
LPAs increase the range and type of decisions a person can authorise others to make on their behalf.
There are two types of LPA:
They are separate types with separate forms, and cannot be combined in one document.
The person who makes the LPA is known as the ‘donor’. The donor must:
The LPA replaces an unregistered EPA.
It gives the donor the choice to plan for a time when they may lack capacity to make decisions for themselves in the future.
It enables the donor to choose trusted people to make decisions on their behalf.
It includes important safeguards for the donor.
The Attorney (person appointed) must pay regard to the Mental Capacity Act 2005 Code of Practice (2007).
Attorneys are governed by the principles of the MCA.
Before any decision an attorney must first be satisfied that it is in the donor’s best interests.
In relation to best interests, attorneys must have regard to the MCA 2005 Code of Practice.
An attorney can make any decision the donor would make in respect of finances and property.
The decisions can be subject to restrictions and conditions imposed by the donor within the LPA document. Generally, attorneys will:
Attorneys for health and welfare may make decisions that the person would normally make including:
They can also consent to or refuse to consent to:
The LPA must specify the donor’s intentions and instructions.
Who does the donor want to make decisions about life sustaining treatment on their behalf?
Option A: give attorney/s authority to give or refuse consent to life-sustaining treatment on the person’s behalf. If the donor chooses this option, their attorney/s can speak to doctors on their behalf as if they were the person;
Option B: do not give attorney/s authority to give or refuse consent to life-sustaining treatment on their behalf. If the donor chooses this option, the doctors will take into account the views of the attorneys and of people who are interested in their welfare as well as any written statement they may have made, where it is practical and appropriate.
No. Section 62 of the Act emphasises that nothing done in the Act effects laws relating to murder, manslaughter or section 2 of the Suicide Act 1961;
Section 4(5) of the Act states that no one can make a decision about life sustaining treatment, if they are motivated by a desire to bring about death.
The donor and attorney/s will need to read all the information provided, see Make, register or end a lasting power of attorney (HM Government). It can be read to someone unable to read / see.
The LPA forms are divided up into different sections:
In Section 6, the donor can include people whom they want to notify when the LPA is registered. This is up to five named parties who are to be informed at the point of registration. However, they do not have to choose people to notify if they do not want.
The certificate provider confirms that the donor’s understands the LPA.
The certificate provider signs to confirm they have discussed the LPA with the donor, that the donor understands what they’re doing and that nobody is forcing them to do it.
There are two different categories of certificate provider, but only one is required to complete the form. The ‘certificate provider’ should be either:
An attorney cannot also be a certificate provider.
Registration of an LPA costs £82 (for each one).
Objections on factual grounds must be made to the Office of the Public Guardian, for example:
Objections on prescribed grounds must be made to the Court of Protection, for example:
The following are the safeguards and benefits which have been built into the LPA process:
All forms available including application to waive or delay fees;
Although not required by law, it is quite a complex business and simple mistakes can invalidate the LPA. Independent legal advice is in the donor’s own interests.
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